Manning the evidential ramparts – Zondo Commission’s first 100 days

This multi-facetted analysis of the first 100 days of the Zondo Commission concludes that it is doing the job admirably, seemingly at treacle-like speed with those implicated cleverly playing a waiting game, but nevertheless changing the political landscape forever. Slowly the evidence is stacking up, and like frogs in slow-warming water, the more complacent culprits may suddenly find themselves subpoenaed and in boiling water. Judge Zondo has intimated that he won’t hesitate to use his powers should he believe they have a case to answer. It’s a must-read piece, reminding us not only of the widely held perception that, with parliament about to sit and a new, probably controversial cabinet, appointed, it’s all window dressing for the political puppet masters. But, on the evidence that’s piling up and Zondo and his evidence leaders’ painstaking eliciting and cross examination of it, the likelihood is most certainly that a hard rain’s a-gonna fall – eventually. Read on to be reminded of just what’s gone down so far and judge for yourself. Seldom in this country’s history have we seen 100 days like these. Story courtesy of the Daily Maverick. – Chris Bateman

No subpoenas or hardball tactics yet, but the State Capture docket is growing — and it is damning

By Jessica Bezuidenhout

The Guptas feel like a distant memory, former president Jacob Zuma does not believe he is implicated in State Capture, others fingered are heading back to Parliament while Mosebenzi Zwane is still a regular at ANC NEC meetings.

With more than 541 notices issued to implicated parties since the State Capture commission began in August 2018, there is no sign of a single subpoena having been issued to the likes of Zuma, Zwane, Nomvula Mokonyane, or any of the big names across Cabinet or parastatals. While not an indictment on this inquiry, the only arrests effected since then relate to a decade-old case involving Bosasa.

National Treasury’s acting chief procurement officer, Willie Mathebula, went in early and soon after that came former government spokesperson Themba Maseko, the first witness to directly implicate former president Zuma.

On Tuesday, testimony by Tshiamo Sedumedi from law firm MNS marked the 100th day of hearings into allegations of fraud and corruption in the public sector.

The commission has heard from more than 50 witnesses, some of whose evidence was technical and explanatory in nature, while others have made allegations of outrageous corruption involving the Guptas and their cronies – and against Gavin Watson, member of a prominent South African family, whose company Bosasa allegedly dispensed some R6m in monthly bribes to bent civil servants in exchange for billions of rands in government deals.

The hiring and firing of Cabinet ministers, the dogged campaign to oust Anwa Dramat, Johan Booysen, Shadrack Sibiya and Robert McBride from the security cluster, and the billions of rands in dirty deals at Transnet and Eskom have come back under the spotlight as some of them stepped into the witness box.

This commission has painstakingly pushed into the open the grimy back-room dealings in Zuma’s Cabinet, at private companies and alleged collusion by those on the inside at Denel, Transnet or Eskom.

But, however probable, credible or likely the allegations presented thus far have been, they remain, at least for now, untested. In part because the culprits, understandably so, are not lifting a finger to aid the commission.

Like Zuma, several other Cabinet ministers have not come forward because they do not believe they are implicated. The commission has been told that former State Security minister David Mahlobo, Rural Affairs minister Maite Nkoane-Mashabane and Tina Joemat-Pettersson do not believe they are “implicated”, so they have merely acknowledged receipt of letters to that effect.

Implicated parties have two weeks from the date of issue to inform the commission of their intention to put forward an alternative version or to apply to cross-examine a witness.

Zuma has not filed a single legal challenge to date and attempts by Daily Maverick for comment from Zuma’s lawyer, Daniel Mantsha, have gone unanswered. Mantsha, too, is implicated at the commission for his role in the removal of former Denel CEO Riaz Saloojee.

Similarly, former parastatal bosses who are deeply implicated by multiple witnesses across Transnet and Eskom – Brian Molefe and Anoj Singh, Gary Pita and Thami Jiyane, among others – have yet to show their hand.

If this remains the case, it would be hard for some, if not much, of the evidence against them to stand, in the end.

The State Capture commission may eventually apply slightly more unpleasant measures to push them before Deputy Chief Justice Raymond Zondo by issuing subpoenas.

Justice Zondo, in a TV interview earlier in 2019, alluded to the fact that parties are entitled to believe that they have no case to answer, but he said the commission may take a different view and could compel them to appear.

Justice Zondo has repeatedly demonstrated that he wants a full picture and has, on occasion, displayed mild irritation over a lack of co-operation from some quarters, urging the commission’s legal team to invoke its subpoena powers where warranted.

Subpoenas aside, the door to Zondo is also not totally shut once the two-week deadline has passed, as implicated parties may rely on a little legal bullet called condonation, which allows them to apply to participate in the State Capture proceedings at any stage down the line.

This would be subject to Justice Zondo buying the reasons for a belated entry into the proceedings – and frivolous reasons are unlikely to suffice.

But for those expecting their names to crop up again, and again, it may be counter-productive to swing the bat at the very first volley.

Imagine if Zuma had raised his hand to challenge Vytjie Mentor’s elaborate tale of first-class trips to China and gilded mirrors and fancy loos at Saxonwold – only to have the commission’s own work dent the credibility thereof so spectacularly.

Two other witnesses, described by Mentor as long-time friends or colleagues, testified that they had no recollection of her claim that she had told them about a Gupta offer to make her the minister of Public Enterprises in 2010.

In other words, Mentor’s testimony unravelled without implicated parties having to have a go at her.

For now, amid the deafening silence of some of the prime suspects, South Africa has to be guided by information provided by witnesses for a record of State Capture that is furiously stacking up.

A slow burn or highly tactical game plan

Save for a few soft subpoenas issued to co-operative witnesses, there is no evidence that a single one has been issued to compel any of the big-name implicated parties to appear, as yet.

The only significant implicated party who has thus far stepped onto the stand is Mzwanele Manyi, to challenge claims that his arrival as the head of the Government Communication and Information System had coincided with Gupta efforts to claim a stake of government’s lucrative advertising budget.

Similarly, cross-examination has been thin and slow, with only Duduzane Zuma having sent his legal team to interrogate former deputy finance minister Mcebisi Jonas about a meeting at the Gupta Saxonwold mansion, where he was allegedly offered a R600m bribe in exchange for getting rid of the top tier of officials at National Treasury.

Former finance minister Des van Rooyen, who allegedly met his Gupta-linked ministerial advisers properly on the morning of his swearing in at the Union Buildings, will have to wait for word on when exactly he gets to confront former National Treasury DG Lungisa Fuzile.

State Capture watchers across the legal field and civil society differ somewhat on the commission’s game plan.

“There is no denying that what goes down in that room at Hill on Empire is huge and that its effects on SA will be irreversible,” one observer told Daily Maverick.

“But it does seem to be puttering along, being watched by the real culprits, who think they’re off the hook.”

The commission, he said, seems to have adopted a strategy that entails presenting all the evidence first, a sensible move, but this does somewhat impact on its ability to rattle implicated parties at earlier or regular intervals.

“That’s why the big guns won’t queue up at Zondo’s door.”

There is also some concern that the commission has yet to demonstrate its true forensic muscle and that it is relying on investigations previously done by Parliament or forensic and law firms.

“It would be powerful to start seeing more evidence of the commission’s own forensic muscle instead of just that introduced via third-party reports”, the observer said.

The commission has accepted into evidence various reports into some controversial deals, including the R54bn locomotive deal at Transnet and the appointment of contractors such as Neotel, the sale of Optimum Coal Mine and Eskom’s substantial pre-payment to the Guptas to help them raise the shortfall on the purchase price.

National Treasury’s Fundudzi Forensic Services reports into Transnet and Eskom, one into Transnet by law firm, Werksmans, and two by another law firm, MNS Attorneys, are among piles of others.

Another observer cautioned that it was crucial to understand that between the architects of State Capture and their enablers in the public sector, the crooked antics were highly sophisticated. They were complex and sometimes masked by a convenient misinterpretation of the rules or neatly wrapped in legal contracts and opinions.

The commission’s work is to test the findings of those previous investigations and it is doing just that, he said.

Some of those reports have made damning findings against former parastatal bosses and have amplified the roles played by private service providers who had allegedly worked in cahoots with the Guptas – think McKinsey & Co, Regiments Capital, Trillian Capital Partners, China North Rail, China South Rail, Neotel, and the money-laundering operations of Gupta Inc involving Homix, among others.

“Most importantly, the commission is conscientising and recalibrating the morality of the civil service. The value of this cannot be underestimated,” the observer said.

But there are moments when it feels as if the culprits of State Capture are not going to see the inside of a jail cell for a long time – the Guptas and their chief lieutenant, Salim Essa, are comfortably watching from self-imposed exile in Dubai.

One of the factors raised by observers who spoke to Daily Maverick relates to time and funding constraints. Two of the watchers agreed that the commission, at times, seems to compress aspects of its work into shorter bites, sometimes billed as “high-level” dives, during witness testimony.

There have been clear signs of capacity challenges that sometimes resulted in delays in getting 3.3 notices out to implicated parties within the strict timeframes, resulting in criticism about fairness.

“Look, there are rumours that it is underfunded and the sooner there is clarity on this, the better. It is simply too important a process for this country,” said the second observer.

The allegations, in size and severity, are astonishing. Some big fish have been named, some more than once and, a string of little-known State Capture enablers have thus far escaped scrutiny because their roles have been overshadowed by the jaw-dropping claims of Louis Vuitton bags stuffed with cash.

Overall, the overwhelming sense of testimony to date is that SA Inc was for sale, either with styrofoam packaged meals for ANC events, home security for politicians or parcels of cash paid out in bribes.

Whether the enablers of State Capture come to the party voluntarily or by compulsion, appearing before the commission is just a matter of time.

Underestimate Zondo at your peril

The commission will conclude its work when Justice Zondo makes findings and recommendations to the President, possibly in 2020.

It is presided over by a patient judge who listens and considers possible alternative versions even when the evidence seems damning.

Skilfully, he is keeping the process credible. Firm, but intensely polite, Justice Zondo reminds all in the room that people are to be referred to as Mr or Mrs, even the crooked ones, and on days when the hearings run for extended hours, he ensures an adjournment for “a comfort break”.

An occasional giggle or moments of cynicism come in the same measure as circumspection about motive, malicious intent or mere incompetence.

While the R137-million arms deal commission, presided over by Judge Willie Seriti, was criticised for having been a non-investigation and whose final report is the subject of ongoing litigation by civil society organisations Corruption Watch and Right to Know Campaign, the Zondo commission does seem to be delving into every corrupt nook and cranny in the quest to get to the truth.

Its budget of roughly R500m seems wholly inadequate against the mountain of highly complex work and a money trail that runs from the government to China and Dubai.

In adopting its inquisitorial approach, the State Capture Commission may seem overly patient and sure, that fear factor, palpable during its early days, may have evaporated – but, if the first 100 days are anything to go by, it is slowly but surely dishing out the body blows. DM

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